The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiffs' second motion to compel answers to their Interrogatories and document production (Docket No. 33*fn1 , Motion of Feb. 28, 2008; cf. Docket Nos. 17, 19 (withdrawn first motions to compel); Docket Nos. 21, 24 (notices of withdrawal); Docket Nos. 25, 28 (Orders regarding withdrawals)). Responses to this latest motion were due by March 18, 2008, reply by April 1, 2008, and this motion was submitted (without oral argument) on April 1, 2008 (Docket No. 34).
This is an Americans with Disabilities Act ("ADA") case against a hotel for allegedly failing to accommodate plaintiff Marcus Ingram, a disabled veteran. Ingram is a member of plaintiff Disabled Patriots of America, a non-profit Florida corporation which represents the interests of its members (including individuals with disabilities as defined by the ADA) "by assuring places of public accommodation are accessible to and usable by the disabled and that its members are not discriminated against because of their disabilities," (Docket No. 1, Compl. ¶¶ 6, 7). Plaintiffs allege that defendant's hotel, the Inn on the River, in Niagara Falls, New York, had architectural barriers that endangered Ingram's safety and that defendant discriminated against Ingram due to his disability (id. ¶¶ 3, 6, 11). Defendant answered on June 11, 2007 (Docket No. 4).
The Court issued a Scheduling Order on August 30, 2007 (Docket No. 11), with motions to compel due by January 29, 2008, discovery to be completed by February 29, 2008, and dispositive motions due by May 28, 2008 (see also Docket No. 38, Order extending ADR mediation schedule).
Plaintiffs served various discovery requests and later moved to compel answers to interrogatories and production of documents (see Docket No. 19, Pls. 2d Motion, ¶¶ 1, 2, Exs. A, B). Plaintiffs' counsel noted, on October 25, 2007, that he had not received this overdue discovery and, if not provided by October 31, 2007, plaintiffs would have to move to compel (id. Ex. C; see Docket No. 17, Ex. C (same); Docket No. 19, Ex. D, Pls. Atty. Aff. ¶ 3). Plaintiffs so moved (Docket Nos. 17, 19) and, after defendant raised the fact that discovery for another case was served by plaintiffs upon defendant (Docket No. 23), plaintiffs withdrew their first set of motions to compel (Docket Nos. 21, 24).
On November 20, 2007, plaintiffs served new Interrogatories and document demands upon this defendant (Docket No. 33, Pls. Motion ¶ 2, Ex. A). They state that these requests were not objected to and they made efforts to confer with defense counsel to obtain this discovery (Docket No. 33, Pl. Atty. Aff. ¶¶ 2, 3, certificate of conference, Ex. B). When plaintiffs' counsel called defense counsel's office on February 28, 2008, he was told that defense counsel was out of the office (id. ¶ 3).
Defendant argues that its counsel was unavailable to respond to plaintiffs' discovery demands and now seeks "a short amount of additional time to furnish discovery responses,"an unspecified amount of time to produce (Docket No. 36, Def. Atty. Aff. ¶¶ 3-6, 9). In attempting to respond to this discovery, defense counsel states that he also has been unable to contact the principal of defendant (id. ¶¶ 7-8).
Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Fed. R. Civ. P. 26(b)(1) (effective Dec. 1, 2007). Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(3)(A).
II. Application--Answers to Interrogatories and Production of Documents
Plaintiffs' Interrogatories and document demands center on defendant's financial records and its ability to remove architectural barriers that are "readily achievable". Defendant does not object to responding to them. The issue here is one of timing to complete defense discovery given defense counsel's personal circumstances and his inability to contact his client. Defendant had these requests since November 20, 2007, and it does not explain the delay in responding prior to February 1, 2008 (cf. Docket No. 36, Def. Atty. Aff. ¶ 3; Docket No. 33, Pl. Atty. Aff. Ex. B (e-mail Thomas Bacon, Esq., to Philip Milch, Esq., Jan. 31, 2008)), when plaintiffs' document their demand for the past due discovery. Defense counsel outlined his personal and medical circumstances that precluded his responding from February 13, 2008 (Docket No. 36, Def. Atty. Aff. ¶¶ 3-6), and his inability to date to discuss these requests with his client (id. ¶¶ 7-8).
Had the parties been able to discuss this, perhaps an accommodation could have been reached to avoid the present motion. But absent that, it is no excuse for failing to produce here. Defendant should produce the discovery sought here by plaintiffs. Defendant seeks a "short" but unspecified amount of time to respond (Docket No. 36, Def. Atty. Aff. ¶ 9). Given defense counsel's situation described above and in his papers, ...